Environmental Decisions of the U.S. Court of Appeals, all Circuits. Summaries provided by Waste Information & Management
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Thursday, October 21, 2010

Oct 20: In the U.S. Court of Appeals, First Circuit, Case No. 09-2643. Appealed from the District Court of Maine in Bangor. The case is about the Canada lynx. The Endangered Species Act makes it unlawful to "take" a member of an endangered species. By regulation, it is also unlawful to "take" a "threatened" species, i.e. one likely to become endangered in the foreseeable future. The term "take" means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect."

The Canada lynx is a wild cat, weighing about 20 pounds, which eats small animals, particularly the snowshoe hare, and is most commonly found in Canada. It is not listed as an endangered species. In 2000, the U.S. Fish and Wildlife Service (FWS) of the federal Department of the Interior listed the Canada lynx as a "threatened" species throughout its U.S. range -- certain states contiguous to Canada, as well as certain Western states. In Maine, a listed state, Canada lynx are found primarily in the northern portion of the state, in state Wildlife Management Districts (WMD) 1 through 11. Maine prohibits the trapping of Canada lynx, but allows the regulated trapping of many other furbearing animals.

The appeal is from the district court's denial of plaintiffs' motion to enjoin Maine state officials from allowing the use of any foothold traps, which are used to legally trap other species, in WMDs 1 through 11. Plaintiffs argued this relief was necessary to prevent "incidental takes" of lynx in these traps. The district court held that plaintiffs had not shown irreparable injury, even recognizing the special emphasis in the Endangered Species Act (ESA) on protecting threatened species. The Appeals Court affirmed the district court decision.

In its opinion, the Appeals Court indicated that the Animal Welfare Institute (AWI) argues the district court erred in not granting other relief, such as a new working group or new regulations. The Appeals Court said, "This argument fails because AWI expressly disavowed such remedies before the district court. It may well have done so for tactical reasons, preferring to stress the

inadequacy of other remedies in order to strengthen its case for injunctive relief against foothold traps. Parties are held to their choices and AWI's bait and switch tactics in the courts are to be deplored, not rewarded. The judgment for defendants is affirmed. Costs are awarded to defendants."

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